of the recommendations of this Commission, Chapter by Chapter is
1. In chapter II – “Present
Whereabouts of Disappeared Persons”, in the section on Returned Detainees, it is
recommended that –
1. further investigations of
the complaints of returned detainees be done as a matter of urgency.
2. the evidence of returned
detainees on the events they witnessed while in custody be recorded.
3. the Human Rights
commission be directed to deal with instances of torture of returned detainees
inquired into by this Commission.
II. In Chapter III –
“Responsibility for the Disappearance” it is recommended that –
1. further investigations
into the complaints of returned detainees be done as a matter of urgency.
2. the investigations into
the persons against whom the Commission has found credible material indicative
of their responsibility for disappearances be done by the Inspector General of
Police under the overall supervision of the Attorney General.
3. the Attorney General to
determine the appropriate legal proceedings to be taken against such persons.
4. the government of Sri
Lanka to take up at the relevant International fora the issue of the need for
the formulation and promulgation of an International instrument on the subject
of the responsibility of Armed Groups.
5. the Police investigations
be done in respect of the recommendations of all Presidential Commissions on
Disappearances with regard to perpetrators of disappearances and not be done on
a case by case basis.
6. the investigations be
done in such a manner as to give the victim confidence in the impartiality of
persons conducting such investigations.
III. Chapter IV – “Legal
Proceedings against those Responsible”, in respect of those persons against whom
credible material indicative of responsibility for causing disappearance have
been found by this Commission, it is recommended that the following steps be
1. the Disappearances
Investigations Unit established in the Criminal Investigation Department of the
Police be well equipped and provided with all logistical support necessary for
them to perform their duties of proceeding against those responsible,
2. the Human Rights
Commission Act be amended to provide for an independent Human Rights Prosecutor
to conduct prosecutions into complaint of human rights violations in general and
disappearances in particular.
3. the Police records such
as information Books, Diet Registers, Movement Registers and Medical Records be
handed over to the Disappearance Investigation Unit of the CID to ensure the
safety of such books.
4. no defence of due
obedience to orders from superiors, be entertained.
5. the principal of
accountability in respect of past acts be reaffirmed for the good of the society
6. prosecutions be not
confined to Junior Officers alone.
7. an amnesty be give to
witnesses, including perpetrators who confess to participation in human rights
violations and give evidence to the circumstances including the orders received,
planning for, etc.
8. the Human Rights
Commission be directed to set up a machinery by way of a Special Committee of
Eminent Persons to entertain application for Amnesty, and record their evidence
of human rights violations.
9. where investigations have
commenced against alleged perpetrators, they be transferred out of the area of
the alleged incidents under investigation.
10. interdiction from
service of such alleged perpetrators to take place following the initiation of
criminal and/or disciplinary proceedings.
11. if any perpetrator is
alleged have attempted to interfere with a witness threatened lawyers,
threatened the prosecutor, or obstructed investigations such action to be a
subject of a further inquiry followed by further punishments and it should also
be a ground for interdiction.
12. allegations of unjust
enrichment be a subject of consideration at a trial against an alleged
perpetrator so as to obviate the need for a multiplicity of actions.
13. a right of the
dependents of a disappeared person to institute civil proceedings for the
recovery of losses suffered by reason of disappearance, be recognized, against
those found responsible for abduction or wrongful confinement by a Court of Law,
where subsequent to such act the disappearance of the victim had ensued.
14. article 17 and 26 of the
Constitution be amended enlarging the scope of locus stand in
fundamental rights applications.
15. returned detainees be
permitted to make applications, despite the lapse of time, in terms of Article
11 and Article 13 of the Constitution, through the Legal Advisory (Assistance)
IV. In Chapter V –
“Preventive Measures”, It is recommended that –
1. any member of the Armed
Forces and the Police Force who makes an arrest or orders a detention must
inform the Human rights Commission of such arrest of detention within forty
2. a Penalty for
non-compliance, including the Chain of Command responsibility for such non
compliance, be specified.
3. inspector General of
Police to be required to provide monthly statistics of compliance.
4. the duty to produce
before the magistrate any person arrested within 24 hours, be made applicable
even during the operation of Emergency Regulations.
5. the arresting officer to
give a receipt of arrest including the name of the person arrested, date, place
and the name and rank of officer arresting to a family member of friend, at the
time of arrest.
6. detention to be only at
an authorized place of detention.
7. adequate publicity be
given to the authorized places of detention.
8. an arrested person to be
promptly handed over to custodial authorities, viz the officer in charge of a
police station or the prison authorities.
9. a change of the place of
detention to be promptly notified to the family of the arrested person.
10. magistrate to visit
places of detention every month.
11. the prison rules be made
applicable to all detainees.
12. release from detention
to be through Courts or to families.
13. the State itself to be
seen to be alert to the preservation of the rights of the detainees by way of
institution of action against violators.
14.the failure or refusal by
the Police to record an arrest, detention and transfer or to record complaints
of abduction. If followed by an involuntary disappearance, be declared a
15. the failure or refusal
per se to comply with the rules be declared acts entailing penal consequences
with a right to file a private plaint by the virtual complainant, in the event
of the Police failing to institute legal proceedings.
16. disciplinary proceedings
be conducted against those officers for breaches of Regulations, with the
superiors themselves being made liable for no performance of their duties in
17. a finding at a
disciplinary inquiry of the violation of the rights of a detainee be made liable
for suspension or termination from service, loss of promotions.
18. the Service Records of
officers to include instances where the Supreme Court has found an officer to
have breached fundamental rights of persons and a finding of responsibility in a
Habeas Corpus Petition.
19. speedy action be taken
on findings of disappearances Commission
20. the jurisdiction of
Magistrates be enlarged to enable them to receive petitions and affidavits in
Habeas Corpus Application, and to visit alleged places of detention, while the
High Court to continue with jurisdiction to declare responsibility and
21.special Division of
Magistrate Court in Colombo to be designated to clear backlog of Habeas Corpus
22. adverse findings in a
Habeas Corpus petitions not to be confined to payment of damages by the State
alone but to include disciplinary action against the officers responsible.
23. respondents in Habeas
Corpus Petitions to deposit the sum awarded, in Court, pending appeal and the
obligation to pay the award be made available against his assets and estate.
24. legal aid organizations
providing their services to Habeas Corpus applicants be made recipients of State
25. the utilization of the
powers under the Emergency Regulations be minimized.
26. parliament to scrutinize
each Regulation before promulgation and Human rights Groups be given the
opportunity to make submissions.
27. adequate publicity be
given to the provisions of the Emergency Regulations.
28. magistrates be empowered
to require the Defence Secretary to provide supplementary information when
seeking an extension of a detention order.
29. officers with Chain –o-
Command Responsibility who order or tolerate disappearances by those under their
command to be made invariably criminally liable.
30. steps be taken without
delay against miscreants identified by the Commission on Disappearances.
31. the possibility of the
maintenance of a “Private Army” at State expense be eliminated.
32. a panel of Lay-Visitors
be appointed in each Police area with powers to speak to detainees, check police
records, etc. and to make complaints themselves to the Human Rights Commission.
33. wide publicity be given
to the Reports of Commissions of Inquiry into Disappearances, translations of
Reports to be made available in Sinhala and Tamil.
34. civil society be
vigorously enlisted as mediators by the Human Rights Commission in the
resolutions of disputes as envisaged by the Human Rights Commission Act.
V. In Chapter VI – “Relief
Measures to Affected Persons”, It is recommended that
1. the recommendations on
relief made by earlier Presidential Commissions of Inquiry be endorsed.
2. A TRUST for the
rehabilitation of persons affected by disappearances be set up under a Board of
Trustees and the Inland Revenue Law be amended to remove the ceiling on
contributions to charity to qualify for tax exemptions to facilitate
contributions to this Trust.
3. the schemes of relief
recommended to benefit affected families in all parts of the country without
4. A WALL OF RECONCILIATION
be constructed with the names of the disappeared persons as a monument to the
5. a tax of 2% be collected
by budgetary provisions on the lines of the Defence Levy to enable
implementation of the relief measures recommended.
6. the basic compensation to
the affected families of disappeared persons, to be paid to all affected
families irrespective of categorization as terrorist or not.
7. any denial of
compensation to be only if a Court of Law has declared a disappeared person as a
terrorist. The Divisional Secretaries to be informed of this, though it is
recommended that even such segregation should cease to operate forthwith.
8. the finding of a
Disappearance Commission be taken as adequate proof for the grant of pensions or
other benefits due to affected families of disappeared persons.
9. a realistic time frame be
fixed to complete the payment of compensation to all those entitled in every
10. a scholarship programme
be initiated for children of affected families on the lines of the scheme for
children of missing soldiers.
11. the formulation of a
comprehensive scheme of vocational training for needy members of affected
12. the Educational and
Health Services to plan out and put into operation a scheme for the
sensitization of all their personnel to the need to provide counseling services
to members of affected families, with the financial assistance and co-ordination
of Non Governmental Organizations.
13. where there is evidence
of unlawful detention or disappearance, the insurance companies be directed to
take .cognizance of this fact and not to treat the policy as having lapsed but
to give the benefit of the policy to the heirs of the disappeared person.
14. where findings of a
Disappearance Commission or a death certificate is issued and where the death or
disappearance is prior to due date of premium, the insurance policy be treated
as having not lapsed.
15. publicity be given to
the Registration of Deaths (Temporary Provisions) Act no.58 of 1998 through the
media and Grama Niladharies.
16. an Advisory Services
Bureau on the lines of the Citizen’s Advisory Services Bureau set up in London
during the Second World War, be set up to assist dependents of disappeared
persons in procedures they have to follow to obtain relief etc.
17. the Divisional
Secretaries be entrusted the responsibility of identifying and reporting to the
Ministry of Public Administration and the Ministry of Rehabilitation, the kind
of vocational training needed for affected families.
18. the recommendations be
acted upon as part of a reparation package to those affected families to help in
the process of national healing and reconciliation.
VI. In Chapter VII –
“Alleged Disappearances not within the Mandate”, it is recommended that –
1. attention be aid to
inquire into the complaints allegedly not reported to any Commission so far in
respect of disappearances which have occurred after 1988.
2. the Human Rights
Commission Act be amended to enable it to inquire into complaints remaining
uninquired as these complaints do not fall within the mandate of this
Commission, and any subsequent instances of this nature brought to their notice.
3. that each of the
complaints not coming within the Mandate of this Commission be referred to
Divisional Secretaries to verify with the Grama Niladharies whether the
whereabouts of such person is still not known in his area.
Hetti Gamage Dharmadasa
Signed on this 23rd day of May, year
2000, at Colombo.
Posted on 2003-06-15